Citation NR: 9726391
Decision Date: 07/30/97 Archive Date: 08/06/97
DOCKET NO. 96-21 752 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Wichita,
Kansas
THE ISSUE
Entitlement to an increased evaluation for patella
chondromalacia, left knee, with degenerative arthritis,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Ralph G. Stiehm, Associate Counsel
INTRODUCTION
The veteran had active service from October 1970 to October
1994.
This case comes before the Board of Veterans’ Appeals (Board)
on appeal from a March 1995 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Wichita,
Kansas, which granted service connection for patella
chondromalacia of the left knee and assigned a noncompensable
(zero percent) evaluation. The veteran has perfected an
administrative appeal which specifically challenged the
assignment of the noncompensable rating.
By a separate rating action dated in April 1996, the
disability evaluation for the veteran’s left knee disorder
(recharacterized as patella chondromalacia of the left knee
with degenerative arthritis) was increased to 10 percent.
This disability evaluation was confirmed and continued in a
rating decision dated August 1996. As the 10 percent
disability evaluation is less than the maximum available
under the applicable diagnostic criteria, the veteran’s claim
for an increase remains viable on appeal. See AB v. Brown, 6
Vet.App. 35, 38 (1993).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the current evaluation for patella
chondromalacia, left knee, with degenerative arthritis does
not accurately reflect the severity of his disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that that the evidence of record
supports a separate 10 percent evaluation under Diagnostic
Code 5003 for degenerative arthritis, and a separate 10
percent evaluation under Diagnostic Code 5257 for
instability, as additional disabilities resulting from the
veteran’s service-connected patella chondromalacia of left
knee.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained by the
RO.
2. The veteran’s service-connected patella chondromalacia of
the left knee is characterized by x-ray evidence of minimal
degenerative changes, and by objective evidence of pain and
some limitation of left knee motion.
3. The veteran’s service-connected patella chondromalacia of
the left knee is currently manifested by mild crepitus, but
is not characterized by instability or recurrent subluxation.
CONCLUSIONS OF LAW
1. A separate 10 percent evaluation for degenerative
arthritis, as additional disability resulting from patella
chondromalacia of left knee is warranted. 38 U.S.C.A. §§
1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45,
4.59, 4.71a, Diagnostic Code 5003 (1996); Esteban v. Brown, 6
Vet.App. 259 (1994).
2. A separate 10 percent evaluation for instability, as
additional disability resulting from patella chondromalacia
of left knee is warranted. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5257
(1996); Esteban v. Brown, supra.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
Service medical records reveal that complaints of knee pain
in service. In June 1992, the veteran complained that this
left knee gave out four or five times, that it hurt at times,
and that it popped two to three times a month. Full range of
motion was reported at that time, the patella was described
as very mobile, and pain with flexion was noted. The
assessment was that of left knee pain, although the left knee
was characterized as stable, and the veteran was referred to
physical therapy. During a subsequent examination that
month, resistive range of motion of on the left side was
reported to be less than or equal to the right side in
strength.
In March 1993, the veteran complained that his knee hurt when
going up stairs. The veteran noted that he had been playing
basketball and volleyball. No crepitus, tenderness, palpable
lesions, or limitation of motion was present at that time.
The assessment was that of overuse syndrome, and the veteran
was directed to avoid running using stairs and bikes, with
instructions to return if his condition did not improve
within two weeks.
In August 1993, the veteran again complained of knee problems
and indicated that not much had changed since March of that
year. Full range of motion and good strength were reported.
The knee manifested no tenderness to palpation or crepitance,
and the veteran was referred to an orthopedist, with
instructions to rule out a meniscus tear. Upon examination,
the veteran denied any history of trauma, and no abnormality
other than patellar grind were noted to be present. The
examiner assessed patellofemoral pain syndrome (PFPS). That
month, the veteran was placed on rehabilitation protocol that
included exercises and ice applications.
In October 1993, the veteran’s gait was described as within
normal limits, and range of motion of the left knee was
reported to be 0 to 125 degrees. Crepitus was noted to be
present, and the assessment was patella chondromalacia, with
increase in pain with activity. Later that month, the
veteran reported a decrease in his pain. Patellar grind and
moderate crepitus were reported. The assessment was that of
PFPS, clinically improved. The veteran was directed to
continue therapy.
In November 1993, the veteran was instructed to perform
exercises, including biking. Later that month, the veteran
complained of pain while running and jumping while playing
basketball. Range of motion at that time was reported as
within normal limits in all directions. Strength was
reported to be good, and there was no pain on palpation. The
goal of therapy at that time was described as increasing
strength and returning to sports. A May 1994 entry reflects
that the veteran did not return to physical therapy and that
he was discharged.
VA treatment records reveal that, more recently, the veteran
was seen in December 1995 with a complaint of a painful left
knee, which the veteran indicated was becoming progressively
worse. At that time, range of motion of the left knee was
reported as extending from 0 to 110 degrees. Mild crepitus
was noted, although there was no instability. X-ray
examination revealed mild degenerative changes. The
assessment was that of pre-arthritic left knee pain. When
the veteran was seen by the VA in February 1996, the
assessment included chronic knee pain.
Analysis
The Board finds that the veteran's claim is well grounded
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991).
That is, the veteran has presented a claim which is not
implausible when his contentions and the evidence of record
are viewed in the light most favorable to the claim. See
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claim that
a service-connected condition has become more severe is well
grounded where the claimant asserts that a higher evaluation
is justified due to increase in severity. See Caffrey v.
Brown, 6 Vet.App. 377, 381 (1994); Proscelle v. Derwinski, 2
Vet.App. 629, 631-32 (1992). The Board is also satisfied
that all relevant facts have been properly and sufficiently
developed. Accordingly, no further assistance to the veteran
is required to comply with the duty to assist mandated by 38
U.S.C.A. § 5107(a) (West 1991).
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity in civil
occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1
(1996). In this regard, the Board is required to adjudicate
claims for increased ratings in light of the schedular
criteria provided by the regulations. See Massey v. Brown, 7
Vet.App. 204, 208 (1994). Where entitlement to compensation
has already been established and an increase in the
disability rating is at issue, it is the present level of
disability that is of primary concern. Francisco v. Brown, 7
Vet.App. 55, 58 (1994).
Moreover, pertinent regulations do not require that all cases
show all findings specified by the Rating Schedule, but that
findings sufficiently characteristic to identify the disease
and the resulting disability and above all, coordination of
rating with impairment of function will be expected in all
cases. 38 C.F.R. § 4.21 (1996). Therefore, where there is a
question as to which of two evaluations should be applied,
the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for
that rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (1996).
In this case, the veteran was most recently evaluated for
patella chondromalacia of the left knee with degenerative
arthritis under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257.
Under this regulatory provision, a slight impairment of the
knee, including recurrent subluxation or lateral instability
warrants a 10 percent evaluation. A 20 percent evaluation
requires moderate impairment. A 30 percent evaluation
requires severe impairment. According to these schedular
criteria, the RO in August 1996 confirmed and continued the
currently assigned 10 percent evaluation for the veteran’s
service connected left knee disorder.
Notably, in rating a disorder, it must be kept in mind that
“[t]he evaluation of the same disability under various
diagnosis is to be avoided. . . . Both the use of the
manifestations not resulting from service-connected disease
or injury in establishing the service-connected evaluation,
and the evaluation of the same manifestation under different
diagnoses are to be avoided.” 38 C.F.R. § 4.14 (1996). The
assignment of more than one rating for the same disability
constitutes impermissible “pyramiding” of benefits. See
Brady v. Brown, 4 Vet.App. 203, 206 (1993). It is possible,
though, “for a veteran to have separate and distinct
manifestations” from the same injury, permitting the
assignment of two different disability ratings. See Fanning
v. Brown, 4 Vet.App. 225, 230 (1993). The “critical element”
in determining whether separate disability rating may be
assigned for manifestations of the same injury is whether
there is overlapping or duplication of symptomatology between
or among the disorders. See Esteban v. Brown, 6 Vet.App. at
261. In other words, a separate rating must be based upon
additional disability.
In this connection, the Board observes that the evidence of
record demonstrates that the veteran’s service connected left
knee disorder has been characterized by both degenerative
arthritis and instability of the knee, but that the left knee
disorder is currently rated as a single disability under DC
5257. However, as discussed above, the Board notes that a
separate rating under DC 5003 for arthritis may be assigned
for a knee disorder already rated under DC 5257 for
instability, where additional disability is shown by the
evidence of record. See, e.g., Esteban, 6 Vet.App. at 261-
62. In determining whether additional disability exists, for
purposes of a separate rating, the veteran must, at minimum,
meet the criteria for a noncompensable rating under either of
those codes. Cf. Degmetich v. Brown, 104 F.3d 1328, 1331
(Fed. Cir. 1997) (assignment of zero-percent ratings is
consistent with requirement that service connection may be
granted only in cases of currently existing disability).
With these considerations in mind, the Board will address the
merits of the claim at issue.
Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis
established by x-ray findings is rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved. When, however,
the limitation of motion of the specific joint or joints
involved is noncompensable under the appropriate diagnostic
codes, a rating of 10 percent is for application for each
such major joint or group of minor joints affected by
limitation of motion, to be combined and not added, under DC
5003. Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion.
Moreover, 38 C.F.R. § 4.59 (1996) provides that “[i]t is the
intention to recognize actual painful, unstable, or maligned
joints, due to healed injury, as entitled to at least the
minimum compensable rating for the joint.” Read together, DC
5003 and section 4.59 thus prescribe that painful motion of a
major joint or group of joints caused by degenerative
arthritis, where the arthritis is established by x-ray, is
deemed to be limited motion and entitled to a minimum 10
percent rating under DC 5003, even though there is no actual
limitation of motion. See Lichtenfels v. Derwinski, 1
Vet.App. 484, 489 (1991).
In this case, limitation of motion of the veteran’s left knee
disorder is to be evaluated under 38 C.F.R. § 4.71a, DC 5260
and 5261. Under DC 5260, a noncompensable evaluation is
provided limitation of flexion of the leg to 60 degrees. A
10 percent evaluation is provided for limitation of flexion
of the leg to 45 degrees; and a 20 percent evaluation is
provided for limitation of flexion of the leg to 30 degrees.
Under DC 5261, a noncompensation evaluation is provided for
extension of the leg limited to 5 degrees. A 10 percent
evaluation is provided for extension of the leg limited to 10
degrees; and a 20 percent evaluation is provided for
extension of the leg limited to 15 degrees.
Consequently, when the medical evidence is evaluated under
the VA’s Schedule for Rating Disabilities, it is apparent
that the veteran is entitled to a separate 10 rating for
degenerative arthritis of the left knee under DC 5003, and a
separate 10 percent rating for instability of the left knee
under DC 5257, bringing the total to a combined 20 percent
disability evaluation. See 38 C.F.R. § 4.25 (1996). In this
regard, the Board notes that although the evidence reveals
noncompensable limitation of left knee motion under DC 5260
and 5261, see also 38 C.F.R. § 4.71, Plate II, the record
does reflect objective evidence of pre-arthritic pain, and
some limitation of left knee motion which can be reasonably
associated with degenerative arthritis. In addition, mild
degenerative changes of the left knee joint have been
confirmed by x-ray findings, thus entitling the veteran to a
minimum 10 percent rating for his left knee arthritis. See
38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5003; Lichtenfels,
supra. See also DeLuca v. Brown, 8 Vet.App. 202, 204-05
(1995).
In a similar manner, the Board observes that the service
medical records indicate that the veteran was seen with
complaints of recurrent pain, popping, and giving-out of the
left knee in June 1992; however, subsequent service
examinations performed between 1992 and 1993, resulted in
diagnoses which include patellofemoral pain syndrome, without
any instability of the left knee being shown on examination.
When the veteran was seen in October 1993, he was found to
have moderate crepitus, as well as patellar grind of the left
knee, although a normal range of the left knee motion was
indicated. In particular, a VA outpatient examination
conducted in December 1995 revealed no current instability of
the left knee, but mild crepitus was noted. Thus,
considering the totality of these pertinent clinical
findings, the Board finds it reasonable to conclude that the
symptomatology associated with instability of the left knee
joint more nearly approximates the criteria for slight
impairment of the knee under DC 5257, which contemplates a 10
percent evaluation. See Johnson v. Brown, 9 Vet.App. 7, 11
(1995) (concluding that “DC 5257 is not predicated on loss of
range of motion, and thus §§ 4.40 and 4.45, with respect to
pain, do not apply”).
However, as the evidence of record demonstrates that the
veteran’s left knee arthritis manifests symptoms of pain and
some limitation of motion, these same symptoms cannot be
considered to evaluate instability of the left knee joint.
Such consideration would result in evaluation the same
manifestations under different disorders, and hence would
constitute impermissible “pyramiding of benefits. See Brady
v. Brown, supra. Accordingly, absent the manifestations
associated with degenerative arthritis of the left knee,
which now warrant a separate 10 percent rating under DC 5003,
the veteran’s left knee disability, as characterized by mild
crepitus which can be associated with instability of the knee
joint, is therefore most appropriately evaluated at a
separate 10 percent rate under DC 5257, as this
symptomatology only contemplates slight left knee impairment.
The Board further notes that since the record shows no
evidence of ankylosis, dislocation of the semilunar cartilage
of the left knee, or nonunion or malunion of the tibia or
fibula, the provisions of DC 5256, 5258 and 5262 are
inapplicable to this case.
The Board has also considered the history of the veteran's
continued complaints of left knee pain and the effect that
this disability has on the earning capacity of the veteran.
See 38 C.F.R. §§ 4.1, 4.2, 4.41 (1996). The nature of the
original disability has been reviewed, as well as the
functional impairment which can be attributed to pain and
weakness. See generally DeLuca v. Brown, supra; 38 C.F.R.
§§ 4.10, 4.40, 4.45, 4.59. However, for the reasons
previously stated, the Board finds that the veteran's left
knee disorder (to include separate ratings for degenerative
arthritis and instability) simply is not impaired to a degree
to warrant higher evaluations than those already assigned by
this decision under the schedule for rating disabilities.
Moreover, the clinical presentation of the veteran’s left
knee disorder is neither unusual or exceptional as to render
impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1) (1996). Clearly, due to
the chronic nature of the veteran’s left knee disorder,
interference with the veteran’s employment is foreseeable.
However, the current evidence of record does not reflect
frequent periods of hospitalization because of his service-
connected left knee disorder, or interference with employment
to a degree greater than that contemplated by the regular
schedular standards which are based on the average impairment
of employment. Thus, the record does not present an
exceptional case where the veteran’s currently assigned
separate ratings of 10 under both DC 5003 and DC 5257, are
found to be inadequate. See Moyer v. Derwinski, 1 Vet.App.
289, 293 (1992); see also Van Hoose v. Brown, 4 Vet.App. 361,
363 (1994) (noting that the disability evaluation rating
itself is recognition that industrial capabilities are
impaired). Accordingly, in the absence of such factors, the
Board finds that the criteria for submission for assignment
of an extraschedular rating pursuant to 38 C.F.R.
§ 3.321(b)(1) are not met. See Bagwell v. Brown, 9
Vet.App. 237, 239 (1996); Shipwash v. Brown, 8 Vet.App. 218,
227 (1995).
In reaching the determination in this case, the Board
recognizes that the RO has not addressed the question of
whether separate ratings under DC 5003 and 5257 are
warranted. Thus, the Board must consider whether the veteran
has been given full notice and an opportunity to be heard,
and if not, whether the veteran has been prejudiced thereby.
Bernard v. Brown, 4 Vet.App. 384, 393 (1993). As the
evidence previously presented adequately spoke to the
diagnostic criteria of both DC 5003 and 5257, and the Board’s
decision to assign a separate 10 percent rating for
degenerative arthritis in addition to the 10 percent already
in effect for instability of the left knee, as well as to
increase the combined disability evaluation to 20 percent,
has not altered the ultimate outcome of the veteran’s claim,
the Board concludes that the veteran has not been prejudiced
by its action. Id. at 394; Karnas v. Derwinski, 1 Vet.App.
308, 313 (1991).
ORDER
A separate 10 percent evaluation for degenerative arthritis,
as additional disability resulting from patella
chondromalacia of left knee is granted.
A separate 10 percent evaluation for instability, as
additional disability resulting from patella chondromalacia
of left knee is granted.
DEBORAH W. SINGLETON
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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